So this allegation falls on its ass, and rather quickly, too. The desire to reach beyond the known facts into the realm of speculation is pretty high in general, but on a spy story it’s even stronger, it would seem. In any event, I’m leaving this post up regardless. Lots of good discussion in the comments section, but more than that, it represents the line at which I believe a civil liberties intrusion rises to an unconstitutional and indefensible standard. This was hyped. But again, there is no reason not to be wary of government overreach.
The original claim, now denied and dormant, is here, followed by my own, earlier comments:
In my original post criticizing the hyperbole over the Verizon phone metadata gathering by the NSA and the revelation of a court order for that program, I wrote this:
“When the Guardian, or the Washington Post or the New York Times editorial board are able …to show that Americans actually had their communications monitored without sufficient probable cause and judicial review and approval of that monitoring, then we will have ourselves a nice, workable scandal. It can certainly happen, and given that the tension between national security and privacy is certain and constant, it probably will happen….
Well, this is the only report, and at a surface level, it seems credible enough as reporting — but it also only seems to be one congressman referencing the NSA admission in a closed-door session. It will be interesting to see if the story stands on its own legs and runs. But now, if the story holds, we may indeed have a nice, workable scandal.***
The legal collection of domestic metadata, and its use as an anonymous haystack in which to find the needles that connect to overseas terror operations? No. That was a discriminating, non-invasive coordination between foreign intelligence efforts and domestic counter-terror programming. And note: This news account states explicitly that this new discovery is of NSA activity is separate from the Verizon court order revelation and the metadata collection.
The data-mining of the internet — if it’s targeted overseas? No, NSA has been acquiring overseas communication for decades. That’s its legal, if not so entirely moral role (gentlemen do not read each others…)
The linguistic-based capture of overseas conversation? Again, that’s the intelligence agency’s purpose. Spying is spying and we do it, as do all modern nations within their capacity.
But this report — again, if corroborated conclusively — has the NSA, an agency that is not supposed to engage in domestic spy work, monitoring the actual conversations of American citizens, domestically, and doing so without warrants for wiretaps. If corroborated by other media, this is, de facto, a fundamental breach of the Fourth Amendment. It would be a breach if was a domestic agency. A warrantless wiretap is just what it sounds like and brings us right back to the pre-FISA, pre-Patriot world of J. Edgar Hoover.
If the NSA has been given authority to listen to domestic conversations without agents of the FBI — the counter-intelligence and counter-terror agency of domestic jurisdiction — writing an affidavit, and obtaining a warrant, then the book is closed. NSA is then illegally spying on Americans, purposefully and with absolute intent. And the current FISA laws, coupled with the Patriot Act, and overseen by the FISA process, without adequate independent oversight from either congress or any other entity — that whole edifice is insufficent to the task of protecting American civil liberties. Indeed, for the sake of reform, it would my hope, if the story holds, that some judge on the FISA court actually signed off in some capacity on non-specific, warrantless wiretapping. The better evidence to level fire at the national security apparatus’ secret court as the weakest part of this process.
My original critique remains my critique. New technology is going nowhere, it will be with us forever, increasing geometrically, as a neutral entity, to be used purposefully for legitimate goals or to be misused against civil liberties. What must be addressed is process. The FISA court and Congressional oversight can’t work with overwhelming secrecy, with an absence of independent review, and without periodic and public, if carefully general, assessments of the risks and costs to civil liberties. If this story is true, then now — right now — there is a constitutional affront worth talking about.
If this story stands, get mad about this. Because if this isn’t illegal under our present laws, it should be. It violates the Fourth Amendment, in every sense. And it’s real and actual government overreach. It’s not speculation. It’s actual. If the story holds, then misuse happened, and there is now a purposeful breach of civil liberties upon which one can fight for reform.
***There are a lot of “ifs” in this post, and I’m adding this sentence two hours after my original post, still waiting to see if the allegation elicits either confirmation or pushback from agency officials and the administration. More to come, we assume.